Category Archives: Ethics

“Formal education in the law does not prepare lawyers for the moral challenges of the profession”

There is so much that South African Universities can learn from developments in the US and UK where law schools have been around so much longer. Yes, South Africa is different in some respects and it’s a unique legal system in a country that is partly third world and we shouldn’t just follow Eurocentric models yaddah yaddah…but it also makes no sense to re-invent the wheel. The SA legal system is based on a mixture of Roman-Dutch and English law and our legal education system is also very similar to that in Europe.  Therefore, if these countries are discovering that their legal education systems are failing to prepare lawyers for the challenges of lawyering in the 21st C, we need to sit up and take notice.

While many of our university law departments do have legal aid clinics which allow students practical experience at lawyering, there is still much work to be done on creating more innovative curricula.

As Magda Slabbert, Professor of Jurisprudence for Unisa points out in her paper on the Requirement of Being a Fit and Proper Person:

“Formal education in the law does not prepare lawyers for the moral challenges of the profession. The ultimate aim of legal training is to enable the student to become a successful attorney or advocate. Knowledge is important in order for the lawyer to be able to make a convincing case for either side in a dispute. –

BUT… 

“What this sort of learned cleverness does not require is either a developed capacity to judge what is right or a disposition to seek it”

(from Eshete A “Does lawyer’s character matter?”)

So what’s happening in the US that we can learn from?  Below are a few points from an article you can read in its entirety here.

  • Legal educators from more than 30 law schools across the country have joined together to make experiential legal education the norm and not just an afterthought.
  • Northeastern University School of Law offers an interesting example because, almost 50 years ago, it pioneered a cooperative model of legal education that integrates theory and practice by requiring students to fulfill all the traditional classroom work while also spending a year immersed full-time in practice settings as diverse as law firms; judges’ chambers; and prosecutor, public defender and legal aid offices
  • The group was formed to ensure that law graduates are ready to join the legal profession with a full complement of skills and ethical and social values necessary to serve clients and the public interest, now and in the future.
  • The symposium will bring together lawyers, judges, students, legal educators and others to begin to forge a new model for legal education and the profession.
  • There is growing recognition across the legal profession and in legal education that business as usual is not acceptable and the time is now to provide more and better educational opportunities for law students, who are the profession’s greatest assets. The alliance is adopting innovative curricula that combine theory and practice to help students puzzle through the challenges and ensure that the profession remains vibrant, dynamic and relevant. This group of legal educators is committed to educating students to hit the ground running, with experience helping clients, collaborating with colleagues, resolving disputes, facing adversaries, drafting documents and interacting with judges, so that these lawyers are ready to solve legal challenges right away.
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Oath, What Oath?

I came across the MBA Oath a few weeks ago and immediately started wondering about a similar oath for attorneys.  I know in South Africa attorneys swear an Oath at the admission ceremony in court – something about upholding the Constitution and being a fit and proper person.  I’m struggling to recall the words so I am trying to get hold of that Oath.

My first call yesterday was to the Cape Law Society. They couldn’t help. I am fascinated by this. Nevermind that that they can’t recite it, that it is not written on their walls, but they don’t have a copy of it that they can make available to me. It’s as if the ethical underpinnings of the entire profession…are, um, MIA.

I decided to take it further so I emailed…well, let’s just say, I emailed someone VERY SENIOR in terms of attorneys in SA. He responded “Great Idea!” and kindly passed on my query – and today I got an email from the head of another province’s law society.  Who says I should contact the High Court. So that’s 2 provincial law societies unable to provide a copy of the Oath that every one of the 57 000 attorneys alive in this country is supposed to be upholding.  

So I called the High Court a  few minutes ago.  The various registrars are unable to help me, I should apparently wait for the Deputy Judge President’s secretary (who is involved in the swearing in of attorneys from time to time, so I gather) to answer the phone. This will probably be on Monday.

And we wonder why the legal profession is perceived as lacking in ethics.

While I endeavour to get hold of the current Attorney’s oath, here is a little background on the MBA Oath:  It was started by Harvard MBA students in 2009, largely as a response to the global financial crisis. This crisis “prompted many in the public and in the press to question whether business schools are successfully executing their missions of educating leaders for society. How did we get into this crisis? Why didn’t business school professors sound the alarms in advance of the meltdown? Why were so many MBAs involved in the decisions leading up to the crisis? Are MBAs so concerned with increasing their personal wealth that they ignore ethics and their responsibilities to society?”

I believe as lawyers we should be asking exactly the same questions of ourselves.

  • How did we get into a situation where lawyers are by and large regarded as sharks?
  • Why are law school professors not sounding the alarm?
  • Why are so many lawyers involved in the deals leading to global financial crises?
  • Are lawyers so concerned with increasing their personal wealth that they ignore ethics and their responsibilities to society?

And I think the time might be ripe for an Attorney’s Oath – one that goes far deeper than swearing to uphold the Constitution.  This is the MBA Oath which I think is a wonderful basis for the development of one for attorneys.

THE MBA OATH

As a business leader I recognize my role in society.

•  My purpose is to lead people and manage resources to create value that no single individual can create alone.

•  My decisions affect the well-being of individuals inside and outside my enterprise, today and tomorrow.

Therefore, I promise that:

•  I will manage my enterprise with loyalty and care, and will not advance my personal interests at the expense of my enterprise or society.

•  I will understand and uphold, in letter and spirit, the laws and contracts governing my conduct and that of my enterprise.

•  I will refrain from corruption, unfair competition, or business practices harmful to society.

•  I will protect the human rights and dignity of all people affected by my enterprise, and I will oppose discrimination and exploitation.

•  I will protect the right of future generations to advance their standard of living and enjoy a healthy planet.

•  I will report the performance and risks of my enterprise accurately and honestly.

•  I will invest in developing myself and others, helping the management profession continue to advance and create sustainable and inclusive prosperity.

In exercising my professional duties according to these principles, I recognize that my behavior must set an example of integrity, eliciting trust and esteem from those I serve. I will remain accountable to my peers and to society for my actions and for upholding these standards.

This oath I make freely, and upon my honor*. 

I believe in having a BHAG. (Big Hairy Audacious Goal). Wonder if I can get  5000 attorneys to sign an Attorneys Oath (that I better get working on) by the end of 2012?

* US Spelling – they leave out letters 😉

Some of the bad news

In order to truly understand a situation or problem, one needs to immerse oneself in it, learning as much as possible, while being careful to let go of old ways of seeing. In Theory U, this is referred to as stage 1 – observe, observe, observe.

Today I have 2 observations about the sad state of law.

One is from Seth Godin’s post today Learning leadership from Congress, in which he discusses the bleak state of leadership in Congress  and says  “Worth noting that 47% of those in Congress (House and Senate) are millionaires–an even greater percentage than those that are lawyers.” Yes, it is an indictment upon the profession that such a significant number of those leading the United States astray are from legal backgrounds. I’m not pointing fingers – I just don’t have the figures available for Parliament in South Africa to do a comparison. Nonetheless, to labour the point, I have an image of all these idealistic young lawyers at law school in the US eagerly learning about the forefathers signing the Declaration of Independence and brave individuals like Rosa Parks (the woman who, way back in 1955, refused to give up her seat for a white person on a public bus and which eventually led to the laws of segregation on public buses being changed). And then fast-forward – these once – idealistic lawyers are sitting in Congress passing all sorts of laws violating basic rights, in order to preserve the wealth of a few at the expense of the many.  Ensconced safely in their mirrored law firm eyries, they hardly ever look down in their all-consuming obsession to bill more hours to make it to the top.  If they do happen to look down,  those far beneath them on the street appear as small as ants. What do they matter?

The second sad thing was a T-shirt I noticed on a black labourer digging next to a road when I was running earlier. It was from some legal subscription service  and had a slogan something like “no lawyer, no power, call 3746559359 to ensure your rights are protected”.

I spent some time looking into these services last year and by and large my view is they are there to rip people off. Like the premise of a medical aid scheme, they aim to have as many subscribers as possible paying the monthly fee they can barely afford, and then try and pay out as little as possible. The exclusion list is ridiculous but written in legalese which it is clear the target market of these initiatives would never be able to understand. Perhaps one or two of these are honourable businesses which really do provide a mechanism for justice by enabling those who could never afford a private lawyer, to fight a legal claim with R100 000 worth of legal fees. I know a guy who runs one of these – I shall not comment on the integrity of his business because I really don’t understand enough. However, I can safely say that there are many such schemes out there that are complete rip-offs preying on the vulnerable and it makes me sick.

My mother’s gardener came to ask for my help a few years ago – all his friends were signing up lawyers and he asked if I would be his lawyer and how much he had to pay me every month. Only through this conversation did I realise how he had been misled – he had no specific legal problem but had been informed you had to pay a lawyer every month to get him on your side in case you later needed him.

In my endeavour to understand the bad rap and shark jokes, I mention these two things. Yet my focus remains on all those lawyers out there who are conscientious caring citizens, committed to helping others, and those who are smart and just trying to earn a living and would be grateful for an opportunity to operate more consciously and bring deeper integrity to their work. I’m finding ways to make this possible – watch this space.